THE QUEEN v. SUEN KAI MING AND OTHERS

IN THE COURT OF APPEAL

1986, No. 319
(Criminal)

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J U D G M E NT

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Penlington, J.

Preliminary

1. The applicants were convicted of several offences on the 12th June 1986 after trial before Hopkinson, J. and a jury.

2. SUEN Kai-ming – “D1” - seeks leave to appeal against conviction on one charge of robbery - count 2 - and against his sentence of 9 years' imprisonment.  WONG Hang-li – “D2” - seeks leave to appeal against concurrent sentences of 12½ years' imprisonment each on 7 charges of robbery - Counts 1, 3, 4, 6, 7, 8 and 9.  LEE Chak-kin – “D3” - seeks leave to appeal against conviction on 2 counts of robbery - Counts 8-9 - and one of assault with intent to rob - count 10 - and against concurrent sentences of 12 years' imprisonment for each of those offences.

3. At the hearing of these applications Mr. Hoosen, who appeared for both D1 and D3, was instructed in respect only of their applications concerning conviction.

4. WONG Hung-sun – “D4” - who appeared in person, seeks leave to appeal against conviction on 2 charges of robbery - counts 5 and 9 - and one charge of assault with intend to rob - count 10 - and against concurrent sentences of 11 years’ imprisonment passed in respect of each of those counts.

Backgound and Evidence

5. The charges relate to a series of robberies carried out in Kowloon between June and November 1985 in which persons who were at medical clinics were robbed and sometimes assaulted. These persons were either doctors, nurses or patients.

6. The victims were tied up with strips of cloth or bandages, the premises ransacked and any valuables found there or on the person of any of the victims were taken.

7. D2 clearly played a leading part in 7 of these robberies and was identified by some of the victims in respect of 6 of them. His fingerprints were found on one occasion. On arrest he made statements admitting 6 offences and in respect of count 1 he took the police to the premises, the robbery not having been reported.

8. D1 faced only one count relating to a robbery at a clinic No. 100 Na than Road on the 2nd July 1985.  Evidence was given by a Dr. Tong and a patient, a Mr. Lee, that they were robbed by 3 men, one of whom had a missing index finger. At an identification parade held 4 months later, following D1's arrest, Dr. Tong identified him but in a somewhat cautious manner – “the person at No. 6 (where D1 was standing) has similar features to the robber”. Mr. Lee made no identification. At D1's request all persons on the parade were asked to conceal their left hands so neither witness could see D1 is missing finger, a feature of the robber of which Dr. Tong in particular was aware because he had taken that man's pulse when he was posing as a patient. However at the trial Dr. Tong was much more confident and said that when he identified D1 he was in fact sure.

9. In addition the Crown relied on a statement made by D1 which was admitted following the usual voir dire inquiry.  Mr. Hoosen’s main ground of appeal is that the statement should not have been admitted because D1, who is asthmatic and drug dependent, was not allowed to have drugs, which had been prescribed for him, or to have methadone for his addiction, until he had made a statement. At the trial there was evidence from a Dr. Chiu who examined D1 at Queen Elizabeth Hospital at 1 a.m. on the 31st October 1985. He found that he was suffering from an asthmatic attack and gave him an injection there and then plus a prescription for some medicine to be taken later. After an hour's rest he decided D1 could be released as he seemed to have improved. The prescription given was for tablets and an inhalation, plus some antibiotics.

10. There was evidence that if a prisoner is given a prescription at hospital when the dispensary was closed it should be handed to the escorting officer who would in turn give it to the Duty Officer when the prisoner is returned to his cell. The prescription would be filled when the dispensary opened. Here however there is no record whatever of what happened to this prescription. The escorting officer said he was given it and handed it on to the Duty Officer. The Duty Officer could not remember the particular incident but said there was no record in the detention register and he was unable to explain what had happened to the prescription.

11. D1 was examined on admission to Lai Chi Kok Reception Centre on 7th November and was found to be suffering from mild asthma. He was asked if he had any complaint to make and he said he had none but did say he had withdrawal symptoms.

12. The statement made by D1, in which he admitted taking part in the robbery, was recorded at 3.40 p.m. on the 31st October and he gave evidence in the voir dire relating to the manner in which it was taken. He said he had been asthmatic for a long time and on the 30th October, on his arrest, he possessed an inhaler. This was however taken from him and placed with his prisoners property. He was then questioned about a robbery at Tsuen Wan. Later he was placed in the cells at Tsimshatsui Police Station. In the early hours of the 31st he felt ill due to asthma and drug withdrawal and was taken to hospital. There he was treated and returned to the cells. That afternoon he was taken out and made a statement admitting taking part in a robbery at Tsimshatsui on the 2nd of July. He did so, he said, because he was assaulted, threatened with further assault and with being charged with a more serious offence but the main reason was that he was promised, if he made a statement, that he would be given medicine for his asthma and methadone for his withdrawal symptoms. He was in great pain and accordingly wrote the statement so as to obtain relief. He also signed the series of questions and answers which followed for the same reason but no such questions were in fact ever put to him and he made none of the recorded answers. He said that what he wrote was dictated by D.P.C. 9993 and was untrue. After that he was given some medicine for his asthma but he was not given methadone for the withdrawal symptoms.

13. D3 was arrested on the 8th or November and was cautioned in respect of the robbery at 100 Nathan Road (Dr. Tong's clinic) on the 2nd of July. His answer, which was post-recorded at Tsimshatsui Police Station some four hours later was a denial of taking part in that offence but admitted his involvement in robberies of clinics at Tokwawan and Causeway Bay. The one in Tokwawan was in the street behind the Ruby Theatre while the one in Causeway Bay was at the McDonald Building. Those statements were admitted after a voir dire and formed the basis of the Crown's case against the D3 in respect of counts 8 and 9. The only other evidence 8ainst him in respect of those counts was that of D2, given at trial, and, quite rightly, the trial judge warned the jury of the danger of putting much reliance on such evidence as D2 had an interest in putting part of the blame for the offence onto somebody else.

14. D3 also gave evidence in the voir dire and said that he was arrested on the night of the 8th November and taken to Tsimshatsui Police Station. There he was assaulted by an Inspector and other police officers using fists and also a board.  This board was the one used to record finger-prints.  He was handcuffed at the time. He was beaten on the soles of his feet with the board, his shoes having been removed; and also on the mouth. He then agreed to sign a document which had been prepared. He did so, and he also copied down some characters which had been prepared for him on another piece of paper. He did so because he was afraid of being further assaulted.

15. The statement finished at 12.32 a.m. on the 9th November and at 12.59 a.m. D3 was then taken to the cells. He immediately asked to see a doctor. He was taken to Queen Elizabeth Hospital and examined and complained to the Doctor of being assaulted by the police.

16. Dr. Chow Wai-hung said he examined the D3 at 01:43 on the 9th November. He found injuries to his mouth and on his chest. There was also a bruise on his back. He said D3 gave a history of being “hit with a wooden object and hands” at about 10:30 on the 8th. He did not examined D3’s feet.  He said that while the injury to D3’s chest could have been self-inflicted the bruise to his back was unlikely to be so caused.

17. The ground of appeal relied on for both D1 and D3 was that there was evidence in both cases to support the allegations made and that evidence had not been rebutted by the Crown. Accordingly the confession statements should not have been admitted. With D1 a prescription had been given but it simply vanished and the police officers could not explain where it had gone. In the case of D3 there was the complaint made to the Doctor of assault and made very shortly after the statement was finished. Injuries were found which were consistent with that complaint. No satisfactory explanation was forthcoming from the police as to how D3 could have received those injuries except the suggestion that they were self-inflicted.   The trial judge in his Ruling on the voir dire considered the injuries and said that the Doctor agreed that all, save the bruise on D3’s back, could have been self-inflicted seems most unlikely, even apart from one bruise being on his back, in view of the very short period of time between signing the statement and being examined.  If he was being very co-operative, as the constable who took the statement said, it seems remarkable that immediately after being returned to the cells he inflicted injuries on himself for the purpose of discrediting the statement he had just made.

Conclusion

18. The decision as to the admission of a statement as being voluntary is very much one for the trial judge.  He has heard and can assess the quality of the evidence. An appellate court is reluctant indeed to interfere with that discretion unless, clearly, it has been come to on a misapprehension of the evidence or on entirely wrong principles. Such an instance will be rare. A judge is not obliged to give reasons for the admission of a statement, and it is probably better that he should not do so. But if he does then his reasoning does lie for the examination of this court.

19. We do not accept the argument put forward by Mr. Hoosen for both D1 and D3 that an explanation must be forthcoming for any defence allegation which is supported by unexplained evidence with D1 the missing prescription and D3 the injuries found. The lack of an explanation will no doubt carry much weight in the decision of whether to admit a statement but it is not necessarily fatal. It will be of importance to the jury in considering what weight they should place on an admitted statement.

20. The missing prescription supported D1’s claim that he was denied medicine in order to induce him to make a statement. But he had been taken to hospital when he complained and there he was given an injection and some medicine. He was kept under observation and then allowed to return to the Police Station. These matters were considered by the trial judge in reaching his decision. We do not consider that the evidence was such that the judge could be said to be wrong in admitting D1's statement.

21. There is, however, a broader issue of whether, having considered all the evidence against D1 including the statement and the manner in which it was taken, this Court should exercise the power given to it by Section 83(1) (a) of the Criminal Procedure Ordinance to allow the appeal because we consider the verdict is unsafe and unsatisfactory.

22. In R. v. Pattinson (1974) Crim. App. R., 417 where the only direct evidence was a confession obtained in somewhat strange circumstances, at 425 Lawton L.J. said:

“Before 1966 (when the Criminal Appeal Act was amended) the question for consideration of this Court would have been : was there evidence before the Court upon which a reasonably minded jury properly directed could have convicted? The answer in this case would undoubted1y have been “yes”, there was, because there was evidence of a confession. But the change in the law now requires us to say whether on the information before us the verdict was safe and satisfactory.”

23. The provision there being considered is identical with the Hong Kong enactment.

24. The evidence against D1 was substantially that of Dr. Tong together with the confession statement. The identification evidence was good, especially bearing in mind that the most obvious characteristic about D1 - his missing finger, was concealed on parade, all the persons on the parade putting their left hand in their pocket. The absence of any record of what happened to D1’s prescription was unsatisfactory but clearly he had received some treatment and we are not convinced that the evidence was such that the jury could not have put sufficient weight on the statement to be satisfied of D1's guilt beyond reasonable doubt. Leave to appeal against conviction is therefore refused.

25. The position of D3 is, we consider, very much different. There was no identification. The only evidence on counts 8 and 9 was that of an accomplice - plus the confession. There was a complaint of assault made to the Doctor at Queen Elizabeth Hospital very shortly after the making of his confession statement and recent injuries were found for which no satisfactory explanation was given. It is true that in the voir dire D3 made the further complaint or his being beaten on the soles of his feet. There was neither evidence of early complaint nor of any medical finding on this and it may be that he lied. He did not give evidence on the general issue.

26. The statement finished at 12.32 a.m. and D3 was returned to the detention cell at 12.47 a.m.  He immediately complained of an assault and asked to see a doctor.  This complaint was reported to the Duty Officer and at 1.28 a.m. he was taken out of the cell and escorted to Queen Elizabeth Hospital where he was examined at 1.43 a.m.

27. Dr. Chow Wai-hung was called by the defence in the course of the voir dire and his evidence was interposed in the course of the evidence given on that issue by D3.

28. He detailed the injuries he had found upon examination on D3 as a small area of redness above the left lip with a small red bruise on the mucosa of the left oral cavity-inside the mouth. There was also redness present on the left upper part and right lower part of the chest with a 2½cm red bruise on the right back. He described these injuries as being compatible with D3 having been struck.

29. In cross-examination he was asked if the injury inside the mouth could have been self inflicted to which he answered “Yes”. Of those on the outside of the mouth he said self infliction was “possible”.

30. When asked a similar question in respect of the injury to the back he replied that it was “possible but unlikely”.

31. When asked by the Court if the areas of redness which he found on D3 were recent and consistent with the timing of the statement and the alleged assault he said they were.

32. In dealing with these aspects in the course of his ruling on the voir dire the trial judge said:

“The doctor said he had - the 3rd accused had complained of being hit by a wooden object and by hands that evening, and that the injuries were compatible with that, but that they could also have been self inflicted and that he would have expected abrasions if the 3rd accused had been hit on the mouth with a board.”

33. He then went on:

“Well, having seen and heard the 3rd accused story that an organised and concerted assault was made on him by the whole police party, including the inspector and the sergeant and that his statement was concocted by the detective; having heard that on the one hand, and the complete denia1s by the officers on the other, I reject his story and find that he was not assaulted or threatened as alleged.”

34. In coming to those conclusions he seems to have overlooked the times which we have set out above which indicate to us that it was unlikely that the injuries were self inflicted and to an extent to have discounted the evidence of the doctor, which gave colour to the allegation of assault. In his comments on that evidence he misapprehended the general trend that it was "possible” in one case but unlikely in another that those injuries were self inflicted. This was to place greater reliance than the evidence warranted on the aspect of self infliction.

35. In those circumstances we feel obliged to interefere for if the proper consideration had been given to the medical evidence we doubt if the finding of no assault would have been come to.

36. Without the statement there was insufficient evidence to go before the jury on counts 8 and 9.

37. The application for leave to appeal against conviction on counts 8 and 9 will be granted, the appeal allowed and the convictions quashed.

38. D3 had also sought leave to appeal against his conviction on count 10 but at the hearing Mr. Hoosen said he would not be supporting that application. The evidence against D3 on count 10 (assault with intent to rob) was separate from counts 8 and 9 and was very strong. We are quite satisfied that conviction is perfectly safe.  Application for leave to appeal on count 10 is refused.

39. D4 was convicted of 2 counts of robbery. Count 5 on 13th August 1985 at 110 Austin Road. Count 9 at the MacDonald Building, 48 Yee Wo Street on the 2nd of November 1935 and of count 10 assault with intent to rob at Dragon Seed Building, Central, on the 4th of November. He was charged in respect of count 6 - robbery at 13 Kimberley Street on the 21st August 1985 but was acquitted of that charge.

40. D4 is grounds of appeal were that he had been mistakenly identified by a witness one Chu Chi-hung and that he had been consequently charged instead of Chu Chi-hung, who was the ring-leader.  He also criticised the trial judge for directing the jury that they could consider evidence in relation to one offence as relevant to others on the basis of similar facts, the modus operandi being the same.  He did not seek to enlarge on these grounds at the hearing.  He was not represented.

41. The evidence against D4 on each count was identification by one of the victims, in each case a doctor.  D4 gave evidence of alibi and said he was working in a garment factory on all the days referred to in the charges.  However when cross-examined he admitted that in fact he was not employed after the end of October.  In addition to his own evidence denying committing any of these offences D4 called D2, who was jointly charged with him on Counts 6 and 9 and who had pleaded guilty to those and 5 other similar offences.  D2 said that D4 was not involved in Counts 6 or 9.

42. The trial judge went through the evidence of each of the Doctors who identified D4 with very great care and gave a full warning on the dangers of convicting on the basis of identification evidence alone. He also referred the jury to the evidence of D2 in relation to counts 6 and 9, coming as it did from a witness subpoenaed by the defendant.

43. We consider that the judge’s directions to the jury on the question of identification cannot be faulted. All the dangers and reasons for caution were pointed out and the evidence of each of the doctors was gone into in detail, including the fact that in relation to the 9th Count the doctor at one identification parade had made a false identification.

44. Complaint is made by D4 in relation to the Judge's direction on Counts 9 and 10 relating to “similar facts”. This was because the Crown's case was that on each occasion D4 posed as a patient who had abdominal pains and was examined by the Doctor for that. Indeed the Doctors who gave identification evidence in relation to Counts 9 and 10 both asked leave to examine the abdomen of the person on the identification parade whom they identified. Only after such examinations did they confirm their identification.

The classic statement of the law relating to “similar fact” evidence is set out in Boardman v. D.P.P. [1975] AC 421 Lord Wilberforce said:

“Whether in the field of sexual conduct or otherwise, there is no general or automatic answer to be given to the question whether evidence of facts similar to those the subject of a particular charge ought to be admitted. In each case it is necessary to estimate (i) whether, and if so how strongly, the evidence as to other facts tends to support, i.e. to make more credible, the evidence given as to the fact in question; (ii) whether such evidence, if given, is likely to be prejudicial to the accused. Both these elements involved questions of degree.”

45. Here there were two robberies, one on Saturday the 2nd November at Yee Woo Street, one on Monday the 4th at Queens Road Central. In each case a man came to a clinic, complained of stomach pain and was examined. In each case while that was going on other men came in, said it was a robbery and they, plus the patient robbed the persons present or assaulted them with that intent. What the Judge said was that if satisfied with the identification evidence in relation to the robbery on the 4th November, Count 10, where the evidence was somewhat stronger, they could consider that in relation to the 9th count on the 2nd November. This was based on the suggestion made by the Judge that the evidence in relation to the two counts showed striking similarity.

46. We have considered some of the other authorities on this point such as R. v. Straffen [1952] 2 Q.B. 911 and R. v. Mansfield [1977] 1 WLR 1102.  In that latter case there was evidence that the accused was seen at three fires which broke out at his employer’s premises.  There was some evidence that the fires were started in the same way and some weak evidence of suspicious behaviour.  The evidence of his being present on each occasion was held to be rightly admitted.

47. Here the jury were clearly told that if, and only if, they were satisfied that D4 was correctly identified by the doctor in relation to Count 9 could they then consider that in relation to Count 10. We think that the evidence of both offences did show a striking similarity, the jury were rightly directed that they could consider and it was not unduly prejudicial to the accused.

48. D4’s application for leave to appeal against conviction is accordingly refused.

Sentence

49. D2 appealed against sentence only. He was convicted on 7 counts and received concurrent sentences of 12½  years imprisonment. It is argued on his beha1f that sufficient allowance has not been made for his p1eas of guilty to those offences and the fact that he gave evidence against D3. Mr. Bell, for D2 said he could not say that the offences were not serious and had been repeated. However in view of the pleas and co-operation a discount of 20% of the sentence which would have been proper on conviction after trial should have been given. On that basis the starting point for D2 would be 15 years.  That, Mr. Bell submits, is too high for robberies of this nature. Nobody was injured and no firearms were carried.

50. We consider a sentence of 14 years imprisonment after tria1 would have been correct and a greater discount should have been given for the pleas and co-operation. There will be leave to appeal against sentence and the sentences reduced to 11 years on each charge, all sentences to be concurrent.

51. That leaves the matter of the applications in respect of sentence by D1 on count 1, D3 on count 10 and D4 on counts 5, 9 and 10.

24th April

52. These were serious robberies carried out at medical clinics. They were clearly well planned and executed. The victims must have been very frightened and while no serious injuries were inflicted the purportrators were prepared to use violence and did so.

53. We see no reason to interfere with the sentences of 9 years imprisonment passed on D1 for one count of robbery and 11 years on D4 for 2 counts of robbery and one of assault with intent to rob. These were passed after trial.

54.The sentence of 12 years passed on D3 clearly reflected that he was then standing convicted of 3 charges. Two of those have now gone and he is given leave to appeal against sentence and the sentence on count 10 is reduced to 9 years imprisonment.